• Child custody

Who will get custody of my 5 yr old baby  after divorce? Is it me or my husband.
1. I can prove that he is having an affair.
2. I earn >100,000 pm
3. I am more educated than my husband.
4. My parents are more educated than his.
5. I take good care of my child.
6. My husband is clinically depressed.

How to control visitation rights?

Asked 2 years ago in Family Law from Hyderabad, Telangana
Religion: Hindu
In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.
The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother.
 Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. 
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with.
The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. 
Who will best serve the child's emotional, educational, social and medical needs is the only criteria. 
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does.
Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc

You can argue before court in the child custody case that his extra marital affair with another woman may not be a conducive situation for a better growth of your child and it may be detrimental to his future and career.
All other aspects can be pleaded in the petition for custody in comparison with his own.
If the child is still in your custody, you dont apply for custody, let him file a child custody case which you can strongly defend based on merits in your side.
T Kalaiselvan
Advocate, Vellore
34508 Answers
372 Consultations

5.0 on 5.0

1) welfare of child is paramount consideration 

2)custody of child is generally awarded to mother as child is only 5 years old 

3)father would get visitation rights on weekend and during school holidays 

4) you cannot control father visitation rights 

Ajay Sethi
Advocate, Mumbai
44334 Answers
2575 Consultations

5.0 on 5.0

1. Any dispute of child custody has to be decided on the touchstone of welfare of child and does not have any correlation with the dissolution of marriage of parents. 

2. The welfare of child has to factor in considerations like financial worth of the parents and overall conduct. If you can prove his adultery then it may favour you in evidence.

3. A clinically depressed parent cannot be given child custody.
Ashish Davessar
Advocate, Jaipur
22966 Answers
631 Consultations

5.0 on 5.0

You may get the child custody but being a father he may get visitation right until and unless you proved before the court that visitation right will not be beneficial for child's welfare.

Feel free to call
Nadeem Qureshi
Advocate, New Delhi
4794 Answers
220 Consultations

4.9 on 5.0

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